Oceans of noise - Whale and Dolphin Conservation Society

One possibility is the adoption by the coastal State of laws and regulations in respect of “the
regulation of maritime traffic”. 116 For example, a coastal State may wish to establish a
prohibition on vessel movements in an acoustically-sensitive area. However, any laws and
regulations adopted by the coastal State for the prevention, reduction and control of pollution are
not to hamper innocent passage. 117 Measures for the regulation of maritime traffic in the
territorial sea have been established in the past (e.g. around Orkney in the United Kingdom);
hence such measures are not automatically to be construed as hampering innocent passage. A
coastal State does not, with some exceptions, need the approval of IMO for such measures in its
territorial sea. 118 In practice, however, a coastal State may prefer to obtain such approval in order
to improve the efficacy of the measure and perhaps to be reassured that innocent passage is not
deemed by other States to have been hampered.
Under Art 211(5) LOSC a coastal State may adopt laws and regulations for the prevention,
reduction and control of marine pollution from foreign vessels in its EEZ. However, such laws
and regulations must conform to and give effect to “generally accepted international rules and
standards established through the competent international organization or general diplomatic
conference”. 119 This implies that in the absence of international rules and standards on ocean
noise, the coastal State may not adopt laws and regulations for the prevention, reduction and
control of such noise from foreign vessels in its EEZ.
However, Art 211(5) LOSC is supplemented by Art 211(6) LOSC under which the coastal State
may, in certain circumstances, take “mandatory measures” in “special areas” within its EEZ. At
the outset, other States concerned must be consulted through the IMO. Next the proposal must be
submitted to the IMO for its consideration. The role of the IMO is to determine whether (a) “the
international rules and standards ... are inadequate to meet special circumstances” and (b) the
particular part of the EEZ in question “is an area where the adoption of special mandatory
measures for the prevention of pollution from vessels is required for recognized technical reasons
in relation to its oceanographical and ecological conditions, as well as its utilization or the
protection of its resources and the particular character of its traffic”.
116 Art 21(1)(a) LOSC.
117 Art 211(4) LOSC.
118 See: (a) paras 3.14-3.16 of General Provisions on Ships’ Routeing; and (b) Art 22(3)(a) LOSC.
119 Art 211(5) LOSC.
118